Prosecuting for humanity

'This was a Milosevic project from the beginning'. Nancy Paterson, Hague Prosecutor, Chief Strategist and author of the indictment which ensnared Milosevic, speaks exclusively to The Observer about the anger, the compassion and the meticulous work that justice demands.

A hurricane of violence had been blowing across Kosovo for two months when, in March 1999, Louise Arbour, Chief Prosecutor for the War Crimes Tribunal at The Hague called in the team investigating the carnage. She gave them what amounted to both a challenge and an order: the time had finally come to go after the biggest prey of all, the architect of a decade of violence in the Balkans: Slobodan Milosevic.

Just 52 days later, the indictment was ready - one of the fastest and unarguably the most important in the Tribunal's six-year history. 'The pressure of time was acute,' recalls its author Nancy Paterson. 'Judge Arbour had set the tone and everybody felt it. By a twist of fate, Paterson left the Tribunal's payroll this week, and - in an exclusive interview with the Observer next day - mapped out the trail that led from her office in Holland to cellars full of incinerated corpses in Kosovo.

Her stark, almost myopic document which has slammed the cell door behind Milosevic is short on historical rhetoric and tightly focused. The most important thing, she says, is that it 'worked'.

Paterson had joined the Tribunal at its tentative outset, having worked for 11 years in the Manhattan District Attorney's on the painful but delicate front line of abusive crime; she helped establish - and became Deputy Director of - a unit prosecuting child abuse and domestic violence and juvenile crimes.

'Not all lawyers can work on sexual abuse cases,' she says, frankly, one is prosecuting, but with the victim and for the victim. You need to establish a rapport with the victim, you need to give yourself and your time more than in other cases. Especially in child abuse cases, the abuse of those who cannot verbalise what has happened to them. This experience, these skills, certainly applied to the victims of war crimes. One of the problems with the Tribunal now is that not everyone has that personal connection'.

When Paterson joined the Tribunal 'expectations were not high but we felt that at least there would be something there for the historical record. There would be crisis every few months: will this fold at any moment?' She began researching the gulag of Serbian concentration camps around the infamous Omarska, examining the first, unspeakable, cases of rape within their ghastly confines.

Paterson was unsurprisingly assigned to a team which worked towards securing the first ever convictions for rape as a crime of war - making a landmark contribution to international legal history with the unprecedented convictions last year for rape as a war crime of three men from the town of Foca. 'There was never any doubt in our minds it could be done legally,' she says, 'the problem was the justified reluctance of victims to come forward, which I recognized from working in New York'.

Although bigger fish were eventually hauled into The Hague's net, the triad at the apex of the Balkan carnage was conspicuously missing - Milosevic, Radovan Karadzic and General Ratko Mladic. And in the public eye, as well as among some of its own, the Tribunal's cogency was dependent on the delivery, before long, of at least one of them, 'There was pressure, felt by everybody, that they should be there', says Paterson.

In January 1999, the Serbian killing machine was unleashed across Kosovo, and the West - after eight bloody years - finally decided that Milosevic should face its wrath. In the Hague meanwhile, investigators and lawyers from all departments were commandeered to work on the crisis, with Paterson and a colleague from the Croatia team, Clint Williamson, put in charge of harvesting and processing the evidence against him.

'Milosevic,' says Paterson, 'had always been in the background of everyone's work. But in Bosnia, there was not that direct chain of command. Although we now know much more about Bosnia, in Kosovo this was a Milosevic project from the beginning'.

In March, the Tribunal's chief prosecutor Louise Arbour called the meeting of the Kosovo team, and told them the time had come to indict Serbia's ruler - fast. 'We knew we were working under a tight time restriction. We had decided to set a random, self-imposed deadline,' says Paterson, 'and we had to produce an indictment. Between that meeting and the publication of the indictment was 52 days'.

Williamson and his team met and interviewed thousands among the wretched survivors in flight from their homes, pouring across the frontier into Albania and Macedonia; Paterson at first remained in The Hague to process testimony, draft the legal strategy that would lead to Milosevic and write it into a charge sheet.

The strategy began on the ground, focusing on accounts by refugees and deportees of the mass expulsions of which they were part, or atrocities fresh in their recent memories. Very specific 'crime sites' were selected, where testimony was corroborated and to satisfy criteria that they were 'widespread and systematic' (required to establish a Crime Against Humanity): the village of Izbica, where 130 men were killed 'on or about 28 March 1999'; or that of Mali Krusa four days earlier, where the Serbian police had shot 105 boys and men, and burned their bodies corpses beneath a pile of hay.

Paterson also worked from the top down, to establish Milosevic's responsibility down the chain of command. 'We were working from both the bottom and the top, towards the middle,' she recalls, 'and the middle is where the legal challenge is'.

The connections in that middle strata were established through an entwinement of two principles: Milosevic's de jure and de facto authority at the apex of the apparatus.

De jure relies on a chain enshrined in a constitution - 'that Milosevic, as President of Yugoslavia, was constitutionally in charge of the police and the army'. De facto 'we compare to a Mafia case, where there is technically no formal chain, but it does what it does and orders are given. But how can you prove it?'.

Milosevic's authority was forged through detailed examination of troop and police unit movements, following the military and police command chains and a variety of de facto linkages to the rag-bag of paramilitaries unleashed against the Kosovo's Albanians. In each case, the ties were made through personalities now either the subject of sealed indictments, or under investigation.

'And all this,' she says, almost surprised at herself, 'while the war was raging. I was working on the first part of the indictment on deportation, going to bed at night with 200,000 crime victims. When I woke up there were 250,000 and when I went to bed again it was 300,000. What number was I going to put on the indictment?'

Meanwhile: 'there was a lot of pressure from both sides. Some people thought it a bad idea to issue the indictment while the war was on, that it was in some way going to prolong the war and would complicate things for the NATO alliance'.

Finally the moment came: ' It was a hard decision, but we decided this was not going to prolong or shorten the war; we had the case, we had the physical evidence, the satellite photos and the witnesses'.

The volume and quality of intelligence being made available to the Tribunal had improved significantly since the early days - especially that provided by Britain after the change of government in 1997. 'Countries and governments had been won over,' says Paterson 'who had been guarded at first. One of the biggest challenges facing us and always will be is how to handle sensitive information.

'We had convinced governments that we could protect sensitive information. But sometimes there was intelligence that was too sensitive even for us to accept - we had to get to that by some other means'.

Other sources have told the Observer in the past that Britain provided The Hague with intercepts between Yugoslav forces.

After the indictment was confirmed by Judge David Hunt, there was a meeting in Prosecutor Arbour's office, after which those involved scattered, leaving the Prosecutor and Paterson behind. Arbour, seeking some reassurance, turned to the document's author: "this is a good thing, right?' she asked. 'Yes Judge' replied Paterson, 'this is a very good thing'.

The microscopic focus of the document was a surprise to some. But: 'never bite off more than you can chew,' is Paterson's dictum. 'Don't push the envelope too far. We didn't want him to get off'. It came in two parts: the first was concerned with deportation and the chain of authority. Once the war was over, work on the second part of the indictment could begin - 'the killing sites'.

'We went in a day or two after KFOR. It was incredible to have that kind of access, from a forensic evidence point of view'. The problem was logistical: 'that the Tribunal had only one forensic team which was engaged digging up bodies at Srebrenica'. So the new office that Paterson and Williamson opened in Prstina had to solicit 'donations' of experts from the police forces of more than a dozen countries.

But it is not 'the forensic point of view' that haunts Paterson's imagination. 'At first, it was desolate; before the refugees returned - dead animals lying in the fields, houses still burning ... Then we would examine the "crime scenes" and the bodies. On one level, you think "I am doing this from a professional standpoint". Then: "these are men, women and children". I remember going down the steps to a cellar in which 19 women and children had been burned; there was a child's slipper burned on the step - these things you remember.

'You'd be examining bodies and neighbours would come up and say: "You're from the Tribunal, want to see some more?" And they'd take you and you'd say: "Yes, those are bodies". We had people who may have done gangland killings in big cities, but no one had seen things like this. By the end, we had 500 potential "Crime Sites" - it became incomprehensible - how do prioritize between 500 mass graves?

As a result of these investigations, some of those 500 mass graves may be added to an amended - and expanded - indictment, to follow any day now.

Next, Paterson and her team had to consolidate witnesses. 'Dealing with witnesses comes down to a clinical position,' she says at first, like a lawyer. 'What witnesses do you have? Are they reliable? Will they be available in the future? Will you come and testify against a defendant who is not some farmer across the field but Slobodan Milosevic? Then: We had had people in Bosnia who would say yes, they'd come - and then a year later half their family had been wiped out in Srebrenica and they'd say - er, hold on. Sometimes, you just watch them slip away, like sand through an hour glass'.

Prosecuting in a humanitarian cause is a dichotomy - a high wire to walk between compassion and loathing. Love and hate, even; one for the abused, the other for the abuser. Paterson, like many of her best colleagues, is a prosecutor whose scalpel edge cuts in one direction, propelled by righteous rage, an anger the 'flame that burns inside, the pilot light'. But it is offset by and demands 'the respect and real understanding for the victims , who are the people we are doing this for.

'Sometimes you have to struggle to maintain your professional distance, sometimes they will want to talk about things that are not important legally, or will not understand why you are asking what you are asking. What matters is how you talk to witnesses, how long you talk. It matters that if they have lost someone in their family, you ask the name - they need to say the dead person's name. These things matter'.

Amid the qualified celebration and some disbelief in The Hague, there remain some nagging thoughts - notably about the continued absence of Karadzic and Mladic from the cells in Scheveningen.

'One of the real frustrations about working at The Hague was that Karadzic and Mladic were not there - and the reasons why not. Ideally, the Tribunal should be unequivocally independent. But the reality is that we are dependent on a political organization, which is the United Nations. And, for all the credit due to all three prosecutors (Richard Goldstone, Arbour and now Carla del Ponte), politics does intrude into its work, and - yes - politics has played a role in why Karadzic is not at the Hague'.

Paterson can go no further into detail. But there are even some at the Tribunal who worry that Milosevic's arrival is out of sequence. With Karadzic's former Deputy President Biljana Plavsic and his Prime Minister Momcilo Krajsnik awaiting trial, prosecutors are anxious to fill Karadzic's empty chair so that everyone in the triangle was locked in. And if they had anywhere to point in attributing blame, it can only be upwards, it could only be to Belgrade and Milosevic.

The already published Indictment to arrest Solbodan Milosevic was amended on Friday night to add 5 new "killing sites" Vucitrn, Meja, Dubrave Prison, Suva Reka, and Kacanik. The indictment says 104 persons killed at Vucitrn (all names listed in the schedule); for Meja they saw 300 are missing (and presumed dead) - they list 17 by name in the schedule; for Dubrave Prison they don't say a specific number just "many" they list the names of 28 in the schedule; for Suva Reka they say at least 34 were killed and they list 33 names in the schedule; for Kacanik they say they describe 51 killing and they list 50 names in the schedule.